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Piracy, Policy, and Law

By Commander James Kraska, JAGC, U.S. Navy, and Captain Brian Wilson, JAGC, U.S. Navy

Capturing the bad guys may be the easy part.

At 0530 on a quiet Saturday morning, 5 November 2005, a hail of automatic weapons fire rained down on the Seabourn Spirit . Piercing the hull, a rocket-propelled grenade crashed into a cabin of the luxury cruise ship. For the 302 passengers and crew, there was no police or coast guard to provide immediate assistance. They were under attack by pirates in international waters and far from help. Despite the damage, the ship was able to evade her persuers.

Less than a year later, a dhow plying the ancient trade route between India and Africa was taken over in international waters by ten Somali pirates armed with rocket-propelled grenades and AK-47 assault rifles. Fortunately for the 16 Indians on board, there was a U.S. warship nearby. When the USS Winston S. Churchill (DDG-81) encountered the besieged dhow, her immediate mission was clear: gain control of the vessel and detain the pirates.

Once the pirates were in custody, the way ahead became less clear as the destroyer's commanding officer, and more broadly, the American government and the international community confronted the myriad diplomatic and legal challenges of piracy suppression in the 21st century. Who would investigate and prosecute the case ? Where would the pirates be held, and by whom ? What about the Indian crew members, all of them witnesses to the crime, and what would happen to their ship and cargo ?

The successful interdiction by the Churchill sparked a global effort to develop a modern playbook for confronting piracy. In the United States, the Bush administration began to develop a policy consistent with national maritime strategy, which culminated in a comprehensive piracy policy governing diplomatic and legal action and signed by President George W. Bush in 2007. This establishes a framework for warships that encounter or interrupt acts of maritime piracy and armed robbery at sea, as well as for agencies charged with facilitating the prosecution of perpetrators and the repatriation of victims and witnesses. But because much of the ocean's surface is beyond state jurisdiction, effective piracy repression demands international action and coordination.

The Response

Since 2006, the United Nations and its agency for maritime matters, the International Maritime Organization (IMO), have aggressively confronted piracy. This action could not be more timely: a disturbing spike in piracy is occurring off the Somali coast with an intensity and frequency unmatched since the era of Caribbean buccaneers of the early 19th century. 1 As this was written in late October, about 100 crew members were being held hostage and so far in 2008 more than $30 million in ransom money has been funneled to organized criminal gangs in Somalia. 2 This is not just a regional issue. Global energy markets are affected because 30 percent of the world's daily oil supply is carried on tankers through the Gulf of Aden on their way to the Suez Canal. 3 Sea lines running between Yemen and Somalia constitute the main link between Europe and Asia.

Piracy's devastating effects extend beyond the immediate threat to ships, people, and property. It endangers sea lines of communication, disrupts freedom of navigation and the free flow of commerce, and undermines regional stability. Nations as diverse as France, Malaysia, and Russia are sending warships to respond. The private defense contractor Blackwater has fitted out a helicopter-carrying security escort ship—the MacArthur —and offered her services to commercial ships transiting the Gulf of Aden. The United States and other countries participate in Combined Task Force 150, a multinational coalition that coordinates with the U.S. Fifth Fleet off the Horn of Africa. Ten European Union countries have agreed to contribute to an anti-piracy task force headed for the region. 4 The policy and legal efforts that support these operations are essential to effective piracy repression. It is especially important to ensure that all nations converging on the region to address piracy are operating within the same set of rules.

Defining Piracy

Generally, piracy is any illegal act of violence, detention, or depredation committed outside territorial waters for private (rather than political) ends by crew or passengers of a private ship or aircraft against another ship, persons, or crew. Inside territorial waters such crimes constitute armed robbery at sea and are the responsibility of the state. These definitions emerged from customary international law, the 1958 Convention on the High Seas, and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which has become the de facto constitution for the world's oceans.

The UNCLOS, the UN Charter, and more broadly, customary international law, provide authority that may be invoked for seizing a pirate ship, boarding a ship on the high seas, conducting hot pursuit, and taking action in furtherance of the inherent right of individual and collective self-defense. On the high seas or in any other place outside the jurisdiction of a state, any nation may seize a pirated ship, arrest the pirates, and seize the property on board and submit the matter to its civil and criminal courts. Only warships and military aircraft or vessels in government service, however, may exercise this authority.

Boarding may be conducted under a variety of legal rationales, including the consent of the flag state under Articles 92 and 94 of UNCLOS, the exercise of the right of self-defense under Article 51 of the UN Charter, the right of visit a vessel under Article 110 of UNCLOS if there are reasonable grounds to believe it is engaged in piracy, and in some cases, the extension of port state control measures. Some nations, including the United States, also accept that the master of a vessel can consent to a boarding. If a seizure of a suspected pirate ship is determined to be without adequate grounds, however, the state making the seizure could be liable to the flag state for any loss or damage.

Further, in 1988, IMO member states approved a maritime anti-terrorism and criminal law treaty in the wake of the 1985 Achille Lauro hijacking. The treaty is directed at acts that endanger the safe navigation of ships, and it was amended in 2005 to include a legal framework for combating the proliferation of weapons of mass destruction and their delivery systems. Whether the focus is on piracy in the Baltic in the 14th century or in the Indian Ocean in the 21st century, nothing is as inimical to piracy as regional stability and the rule of law. In an important exception to the norm of flag state jurisdiction, all states may take action against piracy, which is a violation of international law and a universal crime.

Decisive U.S. Action

The wide-ranging policy signed by President Bush—the broadest presidential articulation of U.S. policy toward international piracy since the time of the Barbary pirates—was developed through the National Security Council by Navy judge advocates in the Office of the Under Secretary of Defense for Policy and Strategic Plans and Policy, Joint Staff. It establishes seven goals, each an important component for addressing piracy.

Prevention : One of the most ambitious initiatives is the International Shipping and Port Facility Security (ISPS) Code. The code tightens security throughout the world's commercial fleets and ports by obligating operators of ships and port facilities that handle ships of more than 500 gross registered tonnage to develop, implement, and evaluate security plans. The United States was a leader in crafting the code, which was adopted in 2002, and the U.S. Coast Guard certifies as compliant foreign ports that are departure points for vessels bound for the United States. Because of the major infrastructure changes required, parties to the International Convention for the Safety of Life at Sea (SOLAS) were given two years before compliance became mandatory.

Deterrence : Coastal and maritime states leverage the deterrent value of presence at sea and in ports in the same way that a street cop walks through a neighborhood. Piracy tends to surge when it is ignored and recede when it is addressed by the international community. Several international initiatives in the straits of Malacca and Singapore have, for example, dramatically reduced the incidence of piracy.

Reduce the Maritime Domain's Vulnerability : The complex and ambiguous nature of contemporary maritime threats places a premium on collection and dissemination of actionable information. To anticipate and counter threats requires situational awareness that depends on the ability to monitor activities so that trends can be identified and anomalies differentiated. One of the most important tools in this effort is the Automatic Identification System (AIS), which is required on all ships over 300 gross tons or that carry 12 or more passengers on international voyages. The system broadcasts a signal, which provides pertinent information about the ship and its movement. In the Mediterranean and Gulf of Guinea, the Navy is working with partner nations to promote an advanced system that fuses AIS information in an internet-based exchange portal.

A global satellite-based vessel identification system that is more secure than AIS—Long Range Identification and Tracking—was introduced in 2006. Once fully operational in December 2008, it will provide global surveillance of maritime traffic for the purposes of detecting, identifying, and classifying vessels and will be key to reducing vulnerability in the maritime domain.

Hold Pirates Accountable : The present policy is an extension of 200 years of experience in prosecuting piracy. From 1815-23, for example, piracy cases—which are federal crimes under Title 18 of the U.S. Code—were among the most numerous reviewed by the U.S. Supreme Court. 5 In the 2006 case of the Indian dhow, the pirates were transferred to Mombasa and later convicted in a Kenyan court and sentenced to seven years imprisonment. Local action is particularly beneficial because it demonstrates responsible governments maintaining order and stability in their maritime neighborhood.

Preserve Freedom of the Seas: Freedom of navigation underpins global prosperity, peace, and security. Throughout world history the foremost powers achieved and maintained their position of leadership through preeminent seapower and reliance on freedom of the seas.

Historically, the United States has actively defended this freedom. Piracy was the catalyst for George Washington to launch the Navy by building six frigates to operate against the Barbary pirates while European governments paid tribute to transit the Mediterranean. Freedom of the seas was a feature of President Woodrow Wilson's Fourteen Points in World War I, and one of the aims of the Atlantic Charter during World War II. By including freedom of the seas as a major component of its piracy policy, the United States acknowledges that pirates work to deny the international community the exercise of a long-established freedom and well-recognized right.

Protect Sea Lines of Communication : The initial rise of the global economy can be attributed in large part to unimpeded ocean transit. There is an interlocking and reinforcing quality to open sea lines of communication, as freedom and safety in the maritime domain generate stability and prosperity on land. Free trade and international investment help socialize non-democratic nations into an interdependent liberal world system. Today, shipping is the heart of the global economy with more than 80 percent of the world's trade traveling by sea.

Lead and Support International Efforts : One promising means of achieving greater cooperation is the Global Maritime Partnership. The concept embraces a figurative 1,000-ship navy, representing the idea that no nation can do it alone. This approach is central to that adopted in A Cooperative Strategy for 21st Century Seapower and is key to expanding maritime security cooperation.

All nations have a common interest in taking action against piracy because all benefit from a stable maritime security environment. In the Indian Ocean, for example, the United States and India both desire freedom of navigation, the free flow of commerce, and protection of the sea lines. When the two countries reached agreement on civilian nuclear cooperation in 2006, they also affirmed their commitment to address piracy and armed robbery at sea with the signing of the Indo-U.S. Framework for Maritime Security Cooperation.

Beyond the Policy

In addition to the formal U.S. piracy policy, a working group principally composed of the Departments of Defense, Justice, and Homeland Security developed complementary disposition and logistics guidance for managing suspected pirates, victims, and witnesses taken into custody by warships during counter-piracy operations. The guidance is valuable to on-scene responders and includes recommendations for recording, among other points, accurate identification of vessels involved, identification of victims and witnesses and persons-under-control (PUCs), and information collection checklists.

Piracy and armed robbery at sea are global concerns, and the International Maritime Organization in particular has been a remarkably effective forum advancing issues of maritime security and the most active multilateral institution in combating piracy. The organization first addressed the problem in 1983 after Sweden expressed alarm to the Maritime Safety Committee over the high incidence of piracy. Later, the IMO produced a draft text that became the basis for Resolution A.545(13), which set measures to prevent acts of piracy and armed robbery against ships. Three years later the organization approved Circular 443, "Measures to Prevent Unlawful Acts Against Passengers and Crew On Board Ships," which applied to passenger ships on voyages of 24 hours or more, and the port facilities that service those vessels. In November 2001, the IMO assembly adopted a code of practice for investigating piracy and armed robbery against ships. 6

A multi-layered regional approach to piracy in the Straits of Malacca and Singapore has led to a dramatic reduction in incidents on those waterways. Under Japanese leadership in 2004, Asian nations signed the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), the first treaty dedicated solely to combating piracy. The pact, which entered into force in 2006, established the Information Sharing Centre in Singapore to share piracy-related information among member states. The IMO sponsored meetings in Tanzania and Yemen seeking a treaty against piracy in the western Indian Ocean. Just as the ReCAAP agreement was its model, this action could serve as a framework for regions—such as the Gulf of Guinea and the Caribbean—affected by piracy but are struggling to develop the capacity to address the problem.

The IMO has sponsored other multilateral efforts. In 2005, more than 25 shipping nations, the littoral states of Malaysia, Indonesia, and Singapore, the international shipping industry, and non-governmental organizations met in Jakarta to develop a framework for improving maritime safety, security, and environmental protection in the Straits of Malacca and Singapore.4 The negotiations continued in Kuala Lumpur in 2006 and Singapore in 2007. In Singapore, states signed the Cooperative Mechanism , which provides for shipping nations to help littoral states develop maritime security capacity for the straits. The mechanism marks the first time that littoral and maritime states have worked together to ensure the safety and security of an international strait, as envisaged in Article 43 of UNCLOS. It provides a forum for regular dialogue, a committee to coordinate and manage projects, and a fund to manage contributions from shipping states.

The successes of ReCAAP and the Cooperative Mechanism show that building partnerships is a prerequisite for developing greater coordination for maritime security.

Dramatic Action

Perhaps most significant, the UN Security Council took historic action against maritime piracy this past summer. Resolution 1816, which was decided under Chapter VII of the UN Charter and therefore legally binding on all states, called on them to cooperate in counterpiracy actions off the coast of Somalia. The resolution authorizes operations inside Somalia's territorial waters to deny that area as a safe haven for pirates who operate outside the 12-mile limit. It also provides for disposition and logistics of persons-under-control detained as a result of counterpiracy operations.

The resolution encourages states to increase and coordinate their efforts to deter acts of piracy in conjunction with the Transitional Federal Government of Somalia, a weak ruling authority inside the fractured state. It also calls on states, the IMO, and other international organizations to build a partnership to ensure regional coastal and maritime security, and is designed to bring together flag, port, and coastal states, and other states with jurisdiction under national and international law. They will cooperate in determining criminal jurisdiction for acts of piracy, in its investigation and prosecution, and in rendering disposition and logistics assistance to victims, witnesses, and persons detained.

Although decided under Chapter VII, the resolution does not compel any state to take PUCs from U.S. warships, but it does provide a valuable umbrella of political cover to states, making it easier to achieve PUC disposition and logistics. The Security Council recently adopted Resolution 1838, which condemns acts of piracy in the region around Somalia and, under Chapter VII, called on states to take part in actively fighting piracy by deploying naval vessels and aircraft. The Security Council also reaffirmed the Law of the Sea Convention's rules applicable to countering piracy and armed robbery at sea.

While piracy has varied in scope, location, sophistication, and lethality over the past 2,000 years, there is one constant: maritime piracy will always exist. Enhanced worldwide repression efforts have resulted in unprecedented development in the legal authorities and level of cooperation to combat the scourge. Effectively responding to this threat requires a comprehensive approach that encompasses political, military, financial, and legal support for operations, logistics, investigations, and prosecutions. More important, there must be the will to move anti-piracy efforts to the forefront.

Looking forward, it is fair to ask how success will be measured. Will the new policy and legal authorities be effectively employed ? Will success be solely linked to numbers, data, and trends on a flow-chart ? Such measurements would only tell part of the story because they cannot account for increased maritime security capacity building, which generates positive benefits beyond piracy. And those numbers do not take into account how these efforts have better prepared states to individually and collectively respond to this international crime.

5. G. Edward White, "The Marshall Court and International Law: The Piracy Cases," 83 American Journal of International Law 727 (October 1989).

6. IMO Doc. A.922(22), "Code of Practice For The Investigation Of The Crimes Of Piracy And Armed Robbery Against Ships," 2001.

Commander Kraska is a member of the faculty of the International Law Department at the Naval War College in Newport, Rhode Island, and previously served as Oceans Policy Adviser for Strategic Plans & Policy (J-5), Joint Staff.

Captain Wilson is Commanding Officer, Region Legal Service Office Naval District Washington and previously served as Oceans Policy Adviser in the Office of the Under Secretary of Defense for Policy.